Exhibit 10(a)74
THE SOUTHERN COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated Effective January 1, 1999
THE SOUTHERN COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE I - PURPOSE AND ADOPTION OF PLAN
1.1 Adoption: Southern Company Services, Inc. hereby adopts The
Southern Company Supplemental Executive Retirement Plan as amended and restated
January 1, 1999 (the "Plan"). The Plan was initially established effective
January 1, 1997. The Plan shall be an unfunded deferred compensation arrangement
whose benefits shall be paid solely from the general assets of the Company.
1.2 Purpose: The Plan is designed to provide deferred compensation
benefits primarily for a select group of management or highly compensated
employees which are not otherwise payable under The Southern Company Pension
Plan as a result of the exclusion of incentive pay from the definition of
earnings set forth under such plan.
ARTICLE II - DEFINITIONS
2.1 "Administrative Committee" shall mean the Retirement Board of the
Pension Plan.
2.2 "Affiliated Employer" shall mean any corporation which is a member
of the controlled group of corporations of which The Southern Company is the
common parent corporation which the Board of Directors may from time to time
determine to bring under the Plan and which shall adopt the Plan, and any
successor of any of them.
2.3 "Beneficiary" shall mean any person, estate, trust or organization
entitled to receive any payment under the Plan upon the death of a Participant.
2.4 "Board of Directors" shall mean the Board of Directors of the
Company. 2.5 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time. 2.6 "Company" shall mean Southern Company Services, Inc.
2.7 "Effective Date" shall mean January 1, 1997.
2.8 "Employee" shall mean any person who is employed by an Affiliated
Employer excluding any persons represented by a collective bargaining agent.
2.9 "Incentive Pay" shall mean all awards earned while an Employee
under any incentive pay plans sponsored by an Affiliated Employer as shall be
determined by the Board from time to time and set forth in Appendix B attached
hereto, provided such incentive award was earned on and after January 1, 1994.
If a person was formerly represented by a collective bargaining agent with
respect to any corporation which is a member of the controlled group of
corporations of which The Southern Company is the common parent and such person
subsequently becomes an Employee, incentive awards described in the preceding
sentence shall include awards earned on and after January 1, 1994 while
represented by such collective bargaining agent.
2.10 "Participant" shall mean an Employee or former Employee of an
Affiliated Employer who is eligible to participate in the Plan pursuant to
Sections 4.1 and 4.2.
2.11 "Pension Plan" shall mean The Southern Company Pension Plan, as
amended from time to time. 2.12 "Plan" shall mean The Southern Company
Supplemental Executive Retirement Plan, as amended from time to time.
2.13 "Plan Year" shall mean the calendar year.
2.14 "SERP Benefit" shall mean the benefit described in Section 5.1.
2.15 "Supplemental Pension Benefit" shall mean the pension benefit, if
any, that is payable to a Participant under a group and/or individual
supplemental benefit plan of an Affiliated Employer (as such term is defined
therein).
Where the context requires, the definitions of all terms set forth in
the Pension Plan shall apply with equal force and effect for purposes of
interpretation and administration of the Plan, unless said terms are otherwise
specifically defined in the Plan. The masculine pronoun shall be construed to
include the feminine pronoun and the singular shall include the plural, where
the context so requires.
ARTICLE III - ADMINISTRATION OF PLAN
3.1 Administrator. The general administration of the Plan shall be
placed in the Administrative Committee.
3.2 Powers. The Administrative Committee shall administer the Plan in
accordance with its terms and shall have all powers necessary to carry out the
provisions of the Plan more particularly set forth herein. The Administrative
Committee shall have the discretionary authority to interpret the Plan and shall
determine all questions arising in the administration, interpretation and
application of the Plan. Any such determination by it shall be conclusive and
binding on all persons. It may adopt such regulations as it deems desirable for
the conduct of its affairs. It may appoint such accountants, counsel, actuaries,
specialists and other persons as it deems necessary or desirable in connection
with the administration of this Plan, and shall be the agent for the service of
process.
3.3 Duties of the Administrative Committee.
(a) The Administrative Committee is responsible for the daily
administration of the Plan. It may appoint other persons or entities to
perform any of its fiduciary functions. The Administrative Committee
and any such appointee may employ advisors and other persons necessary
or convenient to help it carry out its duties, including its fiduciary
duties. The Administrative Committee shall have the right to remove any
such appointee from his position. Any person, group of persons or
entity may serve in more than one fiduciary capacity.
(b) The Administrative Committee shall maintain accurate and
detailed records and accounts of Participants and of their rights under
the Plan and of all receipts, disbursements, transfers and other
transactions concerning the Plan. Such accounts, books and records
relating thereto shall be open at all reasonable times to inspection
and audit by persons designated by the Administrative Committee.
(c) The Administrative Committee shall take all steps
necessary to ensure that the Plan complies with the law at all times.
These steps shall include such items as the preparation and filing of
all documents and forms required by any governmental agency;
maintaining adequate Participants' records; recording and transmission
of all notices required to be given to Participants and their
Beneficiaries; the receipt and dissemination, if required, of all
reports and information received from an Affiliated Employer; securing
of such fidelity bonds as may be required by law; and doing such other
acts necessary for the proper administration of the Plan. The
Administrative Committee shall keep a record of all of its proceedings
and acts, and shall keep all such books of account, records and other
data as may be necessary for proper administration of the Plan.
3.4 Indemnification. The Company shall indemnify the Administrative
Committee against any and all claims, losses, damages, expenses and liability
arising from an action or failure to act, except when the same is finally
judicially determined to be due to gross negligence or willful misconduct. The
Company may purchase at its own expense sufficient liability insurance for the
Administrative Committee to cover any and all claims, losses, damages and
expenses arising from any action or failure to act in connection with the
execution of the duties as Administrative Committee. No member of the
Administrative Committee shall receive any compensation from the Plan for his
service as such.
ARTICLE IV - ELIGIBILITY
4.1 Eligibility Requirements. All Employees who are determined to be
eligible to participate in the Plan in accordance with Section 4.2 whose
benefits under the Pension Plan are limited by the exclusion of Incentive Pay
from the definition of Earnings thereunder (or their spouses, as the case may
be) shall be eligible to receive benefits under the Plan provided such Employees
are (a) participating in the Plan at the time they terminate from an Affiliated
Employer and are retirement eligible or (b) die while in active service while
with an Affiliated Employer provided each such Employee's spouse is eligible to
receive a survivor benefit under Article VII of the Pension Plan at each
eligible Employee's death. Notwithstanding the foregoing sentence, any former
Employee who is rehired by an Affiliated Employer on or after January 1, 1997,
shall also be required to complete one (1) year of continuous paid service with
an Affiliated Employer before being eligible to participate in the Plan.
4.2 Determination of Eligibility. The Administrative Committee shall
determine which Employees are eligible to participate. Upon becoming a
Participant, an Employee shall be deemed to have assented to the Plan and to any
amendments hereafter adopted. The Administrative Committee shall be authorized
to rescind the eligibility of any Participant if necessary to ensure that the
Plan is maintained primarily for the purpose of providing deferred compensation
to a select group of management or highly compensated employees under the
Employee Retirement Income Security Act of 1974, as amended.
ARTICLE V - BENEFITS
5.1 SERP Benefit.
(a) Subject to Article XV of the Pension Plan, a Participant shall be
entitled to a monthly SERP Benefit equal to:
(1) 1.70% (1.0% if subject to Article XV of the Pension
Plan) of the Participant's Average Monthly Earnings
multiplied by his years (and fraction of a year) of
Accredited Service to his Retirement Date, death or
other termination of service, including a Social
Security Offset, as adjusted, if necessary, under the
terms of the Pension Plan for commencement prior to
the Participant's Normal Retirement Date; less
(2) such Participant's Retirement Income that is payable
under the Pension Plan; less
(3) such Participant's Supplemental Pension Benefit.
(b) For purposes of Section 5.1(a)(1), the Participant's Average
Monthly Earnings shall be calculated based on the Participant's Earnings that
are considered under the Pension Plan in calculating his Retirement Income, but
without regard to the limitation of Section 401(a)(17) of the Code, and
including the following additional amounts:
(1) any portion of such Participant's base pay that he
may have elected to defer under The Southern Company
Deferred Compensation Plan, but excluding Incentive
Pay he deferred under such plan; and
(2) any Incentive Pay which was earned as of the
applicable Plan Year in excess of 25% of the
Participant's corresponding base pay for the
applicable Plan Year determined under this Section
5.1(b).
In addition, to determine the Plan Years which produce the highest monthly
average to calculate Average Monthly Earnings under the Plan, a Participant's
Earnings should include those additional amounts provided for in Section 5.1(b).
(c) For purposes of Section 5.1(a)(1), the Participant's years of
Accredited Service shall include any deemed Accredited Service provided under
the terms of any agreement concerning supplemental pension payments between the
Participant and an Affiliated Employer.
(d) To the extent that a Participant's Retirement Income under the
Pension Plan is recalculated as a result of an amendment to the Pension Plan in
order to increase the amount of his Retirement Income, the Participant's SERP
Benefit shall also be recalculated in order to properly reflect such increase in
determining payments of the Participant's SERP Benefit made on or after the
effective date of such increase.
5.2 Distribution of Benefits.
(a) The SERP Benefit, as determined in accordance with Section 5.1,
shall be payable in monthly increments on the first day of the month
concurrently with the Participant's Retirement Income under the Pension Plan.
The form in which the SERP Benefit is paid will be the same as elected by the
Participant under the Pension Plan except that the amount of the monthly benefit
will be modified at the appropriate time based on the commencement of payments
as follows. Payments shall be adjusted to include three components:
(1) The amount necessary to pay the tax due under the
Federal Insurance Contributions Act with respect to
the accrued SERP Benefit determined upon retirement
(or such other appropriate "resolution date" as
defined under Treasury Regulation Section
31.3121(v)-2) calculated in accordance with Section
5.1;
(2) The amount estimated to pay the federal and state
income tax withholding liability due on the amount
paid under paragraph (1) above; and
(3) An adjusted monthly benefit determined on an
actuarially equivalent basis in accordance with the
terms of the Pension Plan which takes into account
the amounts paid under paragraph (1) and (2) above
and taking into account the form of benefit elected
by the Participant under the Pension Plan.
Upon adjustment, the remaining monthly payments shall equal the amount described
in paragraph (3) above. The Beneficiary of a Participant's Pension Benefit shall
be the same as the Provisional Payee, if any, of the Participant's Retirement
Income under the Pension Plan.
5.3 Allocation of SERP Benefit Liability. In the event that a
Participant eligible to receive a SERP Benefit has been employed at more than
one Affiliated Employer, the SERP Benefit liability shall be apportioned so that
each such Affiliated Employer is obligated in accordance with Section 5.4 to
cover the percentage of the total SERP Benefit as determined below. Each
Affiliated Employer's share of the SERP Benefit liability shall be calculated by
multiplying the SERP Benefit by a fraction where the numerator of such fraction
is the pay, as defined by the Administrative Committee, received by the
Participant at the respective Affiliated Employer multiplied by the Accredited
Service earned by the Participant at the respective Affiliated Employer and
where the denominator of such fraction is the sum of all numerators calculated
for each respective Affiliated Employer for which the Participant has been
employed. In the event that a Participant receives additional Accredited Service
in accordance with Section 5.1(c), for purposes of determining liability under
this Section 5.3, such Accredited Service shall be allocated to each Affiliated
Employer which has contracted with the Participant in accordance with such
contract and this allocation will be utilized to adjust the appropriate
components of the fraction in the preceding sentence in determining each
Affiliated Employer's share of the SERP benefit liability.
5.4 Funding of Benefits. The Company shall not reserve or otherwise set
aside funds for the payment of its obligations under the Plan, and such
obligations shall be paid solely from the general assets of the Company.
5.5 Withholding. There shall be deducted from the payment of any SERP
Benefit due under the Plan the amount of any tax required by any governmental
authority to be withheld and paid over by the Company to such governmental
authority for the account of the Participant or Beneficiary entitled to such
payment.
ARTICLE VI - MISCELLANEOUS
6.1 Assignment. Neither the Participant, his Beneficiary nor his legal
representative shall have any rights to sell, assign, transfer or otherwise
convey the right to receive the payment of any SERP Benefit due hereunder, which
payment and the right thereto are expressly declared to be nonassignable and
nontransferable. Any attempt to assign or transfer the right to payment under
the Plan shall be null and void and of no effect.
6.2 Amendment and Termination. The Plan may be amended or terminated at
any time by the Board of Directors, provided that no amendment or termination
shall cause a forfeiture or reduction in any benefits accrued as of the date of
such amendment or termination.
6.3 No Guarantee of Employment. Participation hereunder shall not be
construed as creating any contract of employment between an Affiliated Employer
and a Participant, nor shall it limit the right of an Affiliated Employer to
suspend, terminate, alter or modify, whether or not for cause, the employment
relationship between the Affiliated Employer and a Participant.
6.4 Construction. This Plan shall be construed in accordance with and
governed by the laws of the State of Georgia, to the extent such laws are not
otherwise superseded by the laws of the United States.
IN WITNESS WHEREOF, the Plan has been executed by duly authorized
officers of Southern Company Services, Inc. pursuant to resolutions of the Board
of Directors of Southern Company Services, Inc. this 15th day of April, 1999.
SOUTHERN COMPANY SERVICES, INC.
By: ____________________________________
Its:____________________________________
ATTEST:
By: ____________________________
Its: ____________________________
APPENDIX A
THE SOUTHERN COMPANY SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
AFFILIATED COMPANIES AS OF JULY 1, 1998
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Communications Services, Inc.
Southern Company Energy Solutions, Inc.
Southern Company Services, Inc.
Southern Energy Resources, Inc.
Southern Nuclear Operating Company, Inc.
APPENDIX B
THE SOUTHERN COMPANY SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
INCENTIVE PAY PLANS
Effective as of January 1, 1999, all awards under the following
incentive pay plans shall be counted for purposes of Section 2.9 of the Plan:
The Southern Company Performance Pay Plan
The Southern Company Productivity Improvement Plan
The Southern Company Executive Productivity Improvement Plan
Georgia Power Company 1998 Customer Partnership Teams Incentive Plan
Georgia Power Company 1998 Residential Customer Partnership Team
Incentive Plan Georgia Power Company 1998 Northwest Region Residential
Sales Team Incentive Plan Georgia Power Company Customer Choice Group
1998 Compensation Plan Georgia Power Company Olympic Project Management
Group 1998 Short Term Incentive Plan
Southern Company National Accounts 1998 Incentive Plan
Southern Company Energy Solutions, Inc. 1998 Officer and Staff
Incentive Compensation Plan
Southern Linc Short Term Incentive Plan